FinestWine Affiliation Program

Affiliate Agreement

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FinestWine.com ("FW"). FW is a website produced, owned and operated EURL FINESTWINE, a limited company of 126,000 euros capital the registered offices of which are located 17, Les Boutiques de Cestas, 33610 CESTAS, FRANCE and registered under RCB 240 406 00027

• FinestWine.com is a provider of high quality wines, Champagnes, spirits, delicatessen, art and accessories consisting primarily of a wide selection of French Californian, Italian, Spanish, Portuguese, Australian, South-African, Chilean wines and more... as well as several special services to both its corporate and consumer customers, including but not limited to gift customization or volume price discounts.
• FinestWine.com and the Affiliate are eager to offer FinestWine.com's products to the affiliate's website users by placing a Link on the affiliate's website to FinestWine.com's website under the conditions described thereafter.

"Link(s)"  the electronic connection, in graphical or textual form located on the Affiliate's website and which connects the affiliate's website to FinestWine.com' web site.

"Email(s)"  electronic messages sent by the Affiliate exclusively to affiliate members.

"Affiliate Member(s)" any individual who has signed up on the affiliate's website as a new member.

"Net Sales" the total amount paid to FinestWine.com by its customers for the products actually purchased on the customer's final order if different from the order placed through Finestwine.com's website, minus any tax, discount, shipping charges paid by FinestWine.com, any order cancellation, any amount due to credit card fraud and bad debt, and any refund for products and/or services provided by FinestWine.com.

"New customer": any individual consumer or corporation linking to FinestWine.com's website from a Link placed on the affiliate's web site, who has never purchased through an alternative FinestWine.com distribution channel, and who purchases products on FinestWine.com's website.

"Products": all FinestWine.com products and services which are available for purchase or which become available on FinestWine.com website during the term of this agreement.

• 2.1 FinestWine.com shall make available to the affiliate one or more links that the affiliate shall display prominently on its site, under the conditions and limitations of this agreement.
  
• 2.2 The affiliate agrees to fully cooperate with FinestWine.com in order to establish and maintain such Links in good operating condition during the term of this agreement. 
  
  The affiliate also agrees to only display on its web site the Links provided or approved by FinestWine.com and substitute such Links with any new link supplied by FinestWine.com during the term of this agreement, upon request from the latter. Any information regarding FinestWine.com intended to be displayed on the affiliate's website must be provided or approved in writing by FinestWine.com prior to any display. 
  
  The links shall not be modified by the affiliate except with FinestWIne.com's agreement. All links may be modified and/or expanded from time to time throughout the term of this agreement pursuant to the mutual agreement of both parties.
  
• 2.3 FinestWine.com's website should not be graphically altered whenever a new  customer visits it. If the affiliate decides to insert FinestWine.com's website into an html frame, no scrollbar (or lift) should appear on FinestWine.com's website pages that would not have appeared if an html frame had not been used by the affiliate. The use of horizontal framing methods is prohibited.
  
• 2.4 FinestWine.com reserves the right to terminate this agreement in the event the affiliate modifies its web site and FinestWine.com's deems that such a modification significantly changes the site's nature or image

• 3.1 The parties agree to cooperate and to use their best reasonable efforts to publicize their relationship and market the products.
  
  The affiliate shall use its best efforts to commercialize and promote the partnership and FinestWine.com's website to its customers/members/users.
  
  In particular, the affiliate agrees to promote FinestWine.com's website through specific actions to announce the relationship, and advertising actions for the products.
  
  Periodicals and contents (texts, Links) of such advertising actions shall be approved by the parties prior to being displayed.
  
  
• 3.2 As a rule, any communication considered by one of the parties and relating to the partnership, the other party, and/or the other party's web site, shall be subject to the other party's prior written consent, which shall not be unreasonably withheld.
  
  Any failure to answer within 7 days from the date that the request is received shall be deemed as an approval.

• 4.1 Each of the parties agree that for the term and scope of this agreement in particular, installing the links, promotion by the affiliate of FinestWine.com, and identifying FinestWine.com's affiliates sites, it will be necessary to make limited use of the trade name, logos and marks of the other party. 
  
  For the purpose of this agreement and within this limit, the parties hereby grant to each other the limited right to use the trade name, marks and logos of the other party. Such right shall automatically come to an end at expiration or termination of this agreement.
  
  The parties forbid themselves to modify the licensed material granted by the other party or use such material in a way that may impact negatively the other party's image.
  
• 4.2 The parties warrant that it has clear title to the licensed rights and agrees to indemnify and hold the other harmless with respect to any final sentence that may be passed against it as a result of any legal action brought by a third party, such legal action on account of the breach of such third party's rights, in relation to the use of such logos or trade marks.
  
  Such warranty shall be subject to the following conditions :
  - notifying any such claim in writing and without delay, 
  - cooperating with the other party (at the latter's expense) to defend and settle   
    any claim, and allowing FinestWine.com to defend the case and settle any 
    claim alone.

• 5.1 Commission on sales

• A commission of 8% of the net sales of the products sold by FinestWine.com to a new customer is due each time a new customer places an order during the term of this agreement. 
• New customers may place both personal and corporate orders. FinestWine.com shall be responsible for tracking both types of orders so as to assure the affiliate will receive the correct commission rate on all orders

• 6.1 Within 15 days after the end of each calendar month throughout the term of this agreement, FinestWine.com shall send the affiliate the amount corresponding to the commissions earned during such month after receipt of the affiliate's invoice. 
  All the expenses charged by the affiliate's bank pertaining to such payments shall be born by the affiliate. 
  Commissions shall be paid by wire transfer or check in Euros Commissions earned shall be payable only when they exceed the amount of 200 Euros or 200 USD. 
  If applicable, the affiliate's invoice may therefore apply to several months. Such invoice shall always mention the period invoiced for.
  
  The amounts due shall be paid by FinestWine.com within 15 days of receiving the affiliate's invoice.

• 7.1 A particular area of FinestWine.com's website was designed to report order numbers, date and time and net sales figures on a real time basis. The affiliate will access this area using a user's name and a password supplied by FinestWine.com. 
  This particular area is accessible at the following internet address : affiliation/
  Any order modification or order cancellation shall be notified by fax by Finestwine.com to the affiliate.
  
• 7.2 FinestWine.com warrants the reliability of its commission tracking system.
  Unless it becomes necessary in order to resolve any dispute that may arise between the parties, the affiliate shall maintain in confidence all information it has received, or it may have had access to, or that may have been brought to the affiliate's attention.
  

• 8.1 Operation of FinestWine.com's website
  FinestWine.com agrees to supply all the information necessary to allow the affiliate to create the appropriate links from its website to FinestWine.com's web site. FinestWine.com shall be solely responsible for supplying the products to new customers who link to FinestWine.com from the affiliate's web site, follow up on the sales of products to new customers, customer service, billing and payment collection. 
  FinestWine.com shall not be held responsible for the misuse of the links provided.
  
  FinestWine.com shall be free to establish and modify the price of products and the general conditions of sale. Product prices and availability may vary in time.
  
  FinestWine.com does not warrant that its website will operate without any interruption or operation error. In particular the performance of FinestWine.com's website may be temporarily interrupted for maintenance reasons.
  
  As a general rule, the affiliate will not hold FinestWine.com responsible for the operation of its website (contractual relationships with new customers, interruption or malfunctions of the site, closing of the site, out of stock situations, order cancellations or modifications, etc). 
  
  The affiliate agrees that nothing herein warrants that the relationship will operate in such a way as to be commercially reasonable, and that FinestWine.com has made no representation as for the possible or expected success of the relationship.
  
• 8.2 Limitation of liability
  FinestWine.com will accept no liability for any indirect damages (no matter how they may have occured), including any loss of profits, sales, turnover, revenues, or of opportunities (including but not limited to those arising from the interruption or malfunction of the site, or out of stocks situations), any loss of data or time suffered by staff members of the affiliate that are expressly considered damages requiring no compensation by the parties.
  
  FinestWine.com's liability is expressly limited to the total sum of any and all commission payments made by FinestWine.com to the affiliate under the terms of this agreement.
  
  To be admissible, any claim for any reason must be filed within 30 days of the occurrence of the event on which the claim is based.

• 9.1 the affiliate, fully has the right, power and authority to enter into this agreement and perform any act as required under this Agreement,
  
• 9.2 the performance of this agreement by the affiliate does not and will not breach any agreement entered into by the affiliate or that otherwise binds the affiliate;
  
• 9.3 the affiliate shall comply with all the rules and regulations in force from all jurisdictions and all regulatory bodies concerned, as the case may be.
  
• 9.4 Emails containing FinestWine.com links may be sent to affiliate members exclusively, provided that each affiliate member has been clearly warned before registering as such that he/she may receive ads via email and that he/she may at any time unsubscribe from such email broadcast. 
  
  Relevant technical means must have been put at the affiliate member's disposal in the Email to unsubscribe such as :
  In order to be deleted from our files, please reply to this message with the word "REMOVE" in the subject.

• Order number
• Order date and time
• Order amount without tax and/or tax included
• If applicable, a single identifier provided by the affiliate and/or a list of the products purchased, the use of which is strictly limited to the execution of the affiliate's fidelity program(s) with its affiliate members. This single identifier, as determined by the affiliate, shall match the identifier used by the affiliate for its fidelity program with its affiliate Members. In this case, FinestWine.com wishes to draw the attention of the affiliate to the fact that the data communicated may then be considered as indirectly nominative.

This agreement is entered into for an undetermined period of time from the date it was signed by the parties.

• 11.1 Termination without failure
  This agreement may be terminated at any time by either party, subject to a one month prior notice.
  
  In this case, none of the parties shall be entitled to any compensation on account of such termination.
  
• 11.2 Termination with failure
  Should any party fail to execute any of its obligations under this agreement, the other party may, after notice has been sent by registered mail with return receipt and if such failure continues for 7 working days after receipt of notice, legitimately terminate this agreement. Such termination shall take place without prejudice to any damages and penalties that may be requested from the defaulting party.
  
  As a reminder, interruption or closing of FinestWine.com's website shall not be deemed a failure to fulfill any of FinestWine.com's obligations.
  
  Each of the parties agrees to give back to the other party all the materials that were provided by the latter and forbids itself any subsequent use of it without prior written agreement of the other party.

• 12.1 Confidentiality
  Each of the parties agrees to maintain confidential all the information that may be transmitted by the other party and identified as confidential, or that should in good faith be considered as such, and agrees not to use such information outside the terms of this agreement.
  In any case, this confidentiality agreement shall not apply to such information for which the party can give evidence that it was legally in its possession at the date it was released by the other party,  it was in the public domain at the date it was released by the other party, it became in the public domain after the date it was released by the other party without the other party being chargeable with any fault.
  The parties agree to take all the necessary steps to warrant, protect and maintain the other party's rights.
  
• 12.2 Force Majeure
  Neither party will be liable for any failure or delay in performance of its obligations hereunder in case of "force majeure" as defined by French courts.
  
• 12.3 Assignment
  Neither party may assign or transfer any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party; provided, however, that each party will have the right to assign this agreement to any successor in interest by way of merger, consolidation, or sale of all or substantially all of its assets. 
  This agreement will be binding upon and will inure to the benefit of the successors and permitted assigns of each party.
  
• 12.4 Independent parties
  The parties are independent contracting parties and neither party will be deemed to be the servant, employee or agent of the other party. Nothing contained in this agreement will be deemed to create the relationship of partners, principal or agent, or joint venturers between the parties.
  Each party agrees that it has no right or authority to incurr obligations of any kind in the name of or for the account of the other party nor to commit or bind the other party to any contract or other obligation.
  
• 12.5 Severability
  All provisions of this agreement are severable, and the unenforceability or invalidity of any of the provisions will not affect the validity or enforceability of the remaining provisions.
  
• 12.6 Amendments
  This agreement may be modified, amended or supplemented only by a writing signed by the authorized representatives of both parties to this agreement. Such amendments, modifications or supplements will be deemed as much a part of this agreement as if so incorporated herein.
  
• 12.7 Entire Agreement
  The parties acknowledge that they have read this agreement in its entirety and understand and agree to be bound by its terms and conditions. 
  This agreement constitutes a complete and exclusive statement of the understanding between the parties with respect to its subject matter. 
  This agreement supersedes any and all other prior communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter not expressly set forth in this agreement or any exhibits or schedules are of no force and effect.
  
• 12.8 No Waiver
  Any failure on the part of either party in demanding the performance of any of the provisions, conditions or obligations under this agreement shall at no time operate as a waiver on the part of that party of the possibility to subsequently demand the performance of such provisions, conditions or obligations.
  
• 12.9 Notices
  All notices, requests, or other communications under this agreement will be in writing and will be deemed to have been duly given if:
  - delivered personally,
  - sent by facsimile with confirmation of receipt, 
  - mailed by certified mail, return receipt requested with postage prepaid, or by reliable overnight delivery service at the address in this agreement or if addressed to such other address as may be furnished in writing by either party.
  
• 12.10 Governing Law and disputes
  This agreement is governed by french law.
  The Chamber of Commerce of Bordeaux, shall alone have jurisdiction to take cognizance of any dispute pertaining to this agreement, including, without limitation, its validity, construction, performance and/or termination and consequences notwithstanding plurality of defendant.